The Queen v Sharpe - [2008] NZCA 464

IN THE COURT OF APPEAL OF NEW ZEALAND
CA482/2008
[2008] NZCA 464
THE QUEEN
v
GREGORY DEAN SHARPE
Hearing:21 October 2008

Court:Baragwanath, Priestley and Venning JJ
Counsel:C B Wilkinson-Smith for Appellant

K Raftery for Crown

Judgment:4 November 2008 at 12pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath J)
[1]       This appeal is against a total sentence of six years three months imprisonment following pleas of guilty to charges relating to the manufacture of methamphetamine.
Previous relevant offending
[2]       The appellant had been convicted in January 2003 on charges of possession of utensils for the manufacture of drugs and obstructing the police. The following month he was convicted and sentenced to three years imprisonment for the manufacture of Class A and Class B drugs. In October 2003 he was convicted and sentenced to a cumulative two year term for the manufacture of Class B drugs.
The Whitford charges (July 2006)
[3]       In July 2006 the police executed a search warrant at an address in Whitford. The police located equipment, solvents and chemicals including toluene, acetone and hydrochloric acid. Pseudoephedrine was present in pharmaceutical products. A clandestine laboratory was in operation in the garage where the methamphetamine had been manufactured. The appellant admitted assisting its manufacture. He identified one Ethelstone as the main cook.
[4]       A few days before trial he pleaded guilty to three charges – of possession of equipment capable of being used to manufacture methamphetamine with the intention that it be so used, with possession of material of capable of being used for the commission of such offence with similar intention, and with possession of precursor substances with like intent.
The Pukekohe charges (February 2007)
[5]       While the appellant was on bail on the July 2006 charges, in February 2007 police officers checking his presence at a Pukekohe address detected a strong chemical smell and entered the premises exercising powers under the Misuse of Drugs Act 1975. The appellant and a co-offender, Mr Ethelstone, were present together with the appellant’s partner and another woman. As the police attempted to enter the garage the appellant began walking away. He was warned that if he continued to do so he would be arrested for obstruction. He ignored the warning and ran off. He was apprehended but he broke free. He released a dog which ran at the officers barking aggressively. The officers tried again to restrain him. He struggled violently, lashing out with his arms before again breaking free and running off. He was tackled a short distance away and again struggled with officers before breaking three a third time, and he ran across several paddocks before being recaptured and handcuffed. In the course of the struggle a constable sustained a lower back injury, a small cut to his left little finger and bruised right knuckles.
[6]       ESR analysts identified the presence on the premises of all the chemicals required for the extraction of pseudoephedrine for pharmaceutical preparations and for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Sharpe

Details

AGLC: The Queen v Sharpe [2008] NZCA 464
Case: [2008] NZCA 464
Decision Date: 4 November 2008

CaseChat Overview and Summary

The Queen has appealed against the sentence imposed on Gregory Dean Sharpe following his guilty pleas to charges relating to the manufacture of methamphetamine. The case was heard in the Court of Appeal of New Zealand, with Baragwanath, Priestley, and Venning JJ delivering the judgment. The appeal is against the total sentence of six years and three months imprisonment. The legal issues were whether the sentence imposed was proportionate to the gravity of the overall offending and if the Judge had appropriately considered the totality principle.

The Court found that the Judge had appropriately considered the totality principle by incorporating it into the individual sentences before adding them together. The Judge had also recognised the appellant's longstanding methamphetamine addiction but held that the persistent nature of the offending and the risk to the community warranted a substantial period of imprisonment. The Court concluded that the sentence was well within the range available to the Judge, and the appeal was dismissed.

The Court's decision reaffirms the importance of taking a realistic view of methamphetamine manufacturing operations and the need for deterrence when sentencing those involved in such activities. The Court also emphasised the significance of considering the totality principle in sentencing, ensuring that cumulative sentences do not result in a total period of imprisonment that is disproportionate to the gravity of the overall offending.

Orders